Carmen Applewhite Wins Her U-Rating Appeal in the Appellate Division First Department

When the UFT decides to fight a violation of the Collective Bargaining Agreement (CBA), policy or procedure concerning observations and rights, they can and do win.

Great job, Lori!!!

Betsy Combier

Matter of Applewhite v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2014 NY Slip Op 01501

Decided on March 6, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 6, 2014 
Friedman, J.P., Renwick, Freedman, Feinman, JJ.

11191 113474/11 

[*1]In re Carmen Applewhite, Petitioner-Appellant, 

v

Board of Education of the City School District of the City of New York, et al., Respondents-Respondents.

Richard E. Casagrande, New York (Lori M. Smith of counsel), 
for appellant. 
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng 
of counsel), for respondents. 

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered on or about August 10, 2012, which, to the extent appealed from, granted respondents' cross motion to deny the petition to annul petitioner teacher's unsatisfactory annual performance rating (U-rating) for the 2007-2008 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the cross motion denied, the petition granted, and the unsatisfactory rating annulled.

Respondents' determination to sustain petitioner's unsatisfactory performance rating was not rationally based on administrative findings that petitioner acted in an insubordinate manner and refused to adhere to the directives of the principal during the 2007-2008 school year (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Petitioner established that respondents violated their own rules, procedures and guidelines contained in their human resources handbook "Rating Pedagogical Staff Members" by placing certain disciplinary letters in petitioner's personnel file which neither contained her signature acknowledging receipt of the letters nor a witness' statement attesting to her refusal to sign (see Matter of Kolmel v City of New York, 88 AD3d 527 [1st Dept 2011]; and see Matter of Friedman v Board of Educ. of the City Sch. Dist. of the City of N.Y., 109 AD3d 413 [1st Dept 2013]; compare Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y., 102 AD3d 586, 587 [1st Dept 2013]). We note that neither the principal who made the allegations nor any other witness testified at the hearing.

Under the circumstances presented here, remittitur to Supreme Court for service of an answer is not warranted, as the facts have been fully presented in the parties' papers and no [*2]
factual dispute remains (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. Of Nassau County, 63 NY2d 100, 102 [1984]; Matter of Camacho v Kelly, 57 AD3d 297, 298-299 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER 
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 6, 2014

CLERK

In the case below, the U-rating was sustained:

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2013 NY Slip Op 00418 [102 AD3d 586]

January 29, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 27, 2013

In the Matter of Mitchell Cohn, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.

—[*1] Richard E. Casagrande, New York (Ariana A. Gambella of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered October 27, 2011, which denied the petition seeking, inter alia, to annul the determination of respondents denying petitioner's appeal of an unsatisfactory rating (U-rating) for the 2006-2007 school year and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith. The detailed observations in reports prepared by the principal and two assistant principals, describing petitioner's poor performance in class management, engagement of students, and lesson planning, provided a rational basis for the rating (see Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [1st Dept 2011]; Batyreva v New York City Dept. of Educ., 50 AD3d 283 [1st Dept 2008]). While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or any substantial right (see Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 AD3d 486 [1st Dept 2011]; Matter of Munoz v Vega, 303 AD2d 253, 254 [1st Dept 2003]; compare Matter of Kolmel v City of New York, 88 AD3d 527 [1st Dept 2011]). To the contrary, the record demonstrates that, after petitioner received a U-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 school year and, throughout the year, received professional support and had a [*2]series of classroom observations by the principal and two assistant principals, each one documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies. Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.

 

Familiar Consultants Hired by the de Blasio’s Pre-K Drive

NYC Mayor Bill De Blasio

LINK
Mayor Bill de Blasio’s privately financed campaign to offer prekindergarten to all 4-year-olds in New York City spent nearly $236,000 in January and February, spreading much of the money among the same core group of political consultants behind his winning campaign last year, according to records released on Wednesday.
Those consultants, who were paid not by the city but by a new nonprofit, the Campaign for One New York, includedBerlinRosen, a public affairs firm that took in $43,950 in fees and expenses, and an affiliate of Hilltop Public Solutions, which was paid a $16,500 “management fee,” according to a filing with the state’s Joint Commission on Public Ethics.

Hilltop hired Bill Hyers, the manager of Mr. de Blasio’s mayoral campaign, in December, the same month Mr. Hyers established the Campaign for One New York, which quickly branded itself as UPKNYC.

Genova Burns Giantomasi Webster, a law firm that worked on Mr. de Blasio’s mayoral run, was paid $23,467 in fees.

Acres, the media production firm that helped mold Mr. de Blasio’s campaign commercials — including a pivotal advertisement featuring his son, Dante — was paid $16,900, according to the filing.

Jessica Singleton, who was digital director of the de Blasio campaign and now works for the mayor, received $2,500 in fees for “brand design” and “digital strategy” before she joined the administration.

The nonprofit also paid $40,000 to the North Star Fund, a foundation that supports grass-roots organizations, which added money of its own and spent it promoting “the need for high-quality, universal pre-K and after-school and the UPKNYC plan to pay for these critical investments” within “grass-roots communities,” Dan Levitan, a vice president at BerlinRosen, said by email.

For all those efforts, the campaign has fallen significantly short of persuading state leaders to go along with the mayor’s desire to increase taxes on high-earning city residents to pay for universal prekindergarten and after-school programs. But Mr. de Blasio’s allies argue that the effort has ignited a conversation that could still give the mayor the money he needs to expand those programs.

“UPKNYC has developed a robust grass-roots campaign to make sure that 73,000 children have access to quality, universal, full-day pre-K and 120,000 middle school students have access to after-school programs that will help them succeed,” Mr. Levitan, who was also the spokesman for Mr. de Blasio’s mayoral campaign, said.

Though Mr. de Blasio’s team said weeks ago that it would voluntarily release a list of donors in the coming weeks, Mr. Levitan would not reveal how much money had been raised, or from whom.

The campaign has boasted of a long list of millionaire developers, entrepreneurs and philanthropists, in addition to celebrities like the actresses Cynthia Nixon and Olivia Wilde, among its supporters.

“UPKNYC is supported by individuals, organizations and foundations committed to expanding high-quality early education and after school for all New Yorkers and will fully disclose all donors and amounts beyond what is required by law,” Mr. Levitan said.

Though more than $125,000 went to pay consultants and staff members, including $14,000 in compensation for Joshua Gold, a labor organizer Mr. de Blasio put in charge of the school campaign, the drive has also spent money demonstrating grass-roots support.

Buses to Albany for a rally cost $26,419.

And more than $5,000 was paid for thunder sticks emblazoned with a succinct appeal to lawmakers on behalf of Mr. de Blasio’s push for the tax on high earners: “#LetNYCdoit.”


Thomas Kaplan contributed reporting.